EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Friday, May 10, 2013

Plea Plea Me: Middle District of Pennsylvania Finds Rule 410 Argument Unavailing for 2 Reasons

Federal Rule of Evidence 410 states

(a) Prohibited Uses. In a civil or criminal case, evidence of the following is not admissible against the defendant who made the plea or participated in the plea discussions:

(1) a guilty plea that was later withdrawn;

(2) a nolo contendere plea;

(3) a statement made during a proceeding on either of those pleas under Federal Rule of Criminal Procedure 11 or a comparable state procedure; or

(4) a statement made during plea discussions with an attorney for the prosecuting authority if the discussions did not result in a guilty plea or they resulted in a later-withdrawn guilty plea.

(b) Exceptions. The court may admit a statement described in Rule 410(a)(3) or (4):

(1) in any proceeding in which another statement made during the same plea or plea discussions has been introduced, if in fairness the statements ought to be considered together; or

(2) in a criminal proceeding for perjury or false statement, if the defendant made the statement under oath, on the record, and with counsel present.

In United States v. Bard, 2013 WL 1882984 (M.D.Pa. 2013), the defendant claimed a violation of Rule 410. There were two problems with his argument.

In Bard, Robert Bard executed a proffer agreement -- the "Misrepresentations Document -- during plea bargaining, and the prosecution later used this agreemen to secure his indictment before a grand jury on charges of securities fraud, wire fraud, mail fraud, bank fraud, investment advisor fraud, and making false statements to the FBI.

Bard thereafter claimed that the submission of his proffer agreement was a violation of Federal Rule of Evidence 410.  The Middle District of Pennsylvania disagreed, first noting that it needed to

look no further than the plain language of the proffer agreement to determine that the introduction of the Misrepresentations Document at the grand jury proceedings did not violate the terms of the proffer agreement. The proffer agreement makes clear that "it is understood that nothing contained in the oral proffer given by Mr. Bard will be used against him in the government's case-inchief in any criminal case other than a prosecution for perjury, false statement or obstruction of justice."...Proffer agreements are interpreted in light of contract law principals,...and thus the court will look at its plain terms and give effect to the parties' intent...Clearly, the proffer agreement is devoid of any mention of use of proffered information before a grand jury. Rather, the agreement only restricts the use of proffered information during the government's case-in-chief during a criminal trial.

Second, Bard's argument was unavailing under Federal Rule of Evidence 1101(d)(2), which provides that

These rules—except those on privilege—do not apply to the following:....(2) grand-jury proceedings.



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